The 77-year-old former Vatican treasurer, who was sentenced to six years in prison in March for violent assaults against two choirboys in the 1990s, will again be escorted by guards into Court 15 as he seeks to have charges overturned.
Senior prosecutor Christopher Boyce will lead the crown team that will argue the guilty verdict – handed down by a unanimous jury last December – is safe and correct.
The New Daily understands the Crown team is likely to “methodically” shoot down the points raised on the first day of the hearing by Pell’s legal team, led by appeals specialist Bret Walker, SC.
“The prosecution has to persuade the court that Walker has not raised anything plausible,” a legal source said.
“More than likely they will say that although it was hard, the jury had a clear path to find against Pell.”
Pell was escorted into court by guards for the hearing. Photo: AAP
On Wednesday, Mr Walker passionately argued that Pell’s shock conviction for child sex attacks, committed at Melbourne’s St Patrick’s Cathedral, was “unsafe” and that timing surrounding the alleged events and alibis for the cardinal were key factors in proving the jury made an error.
He addressed the three appeal judges – Supreme Court Chief Justice Anne Ferguson, Justice Chris Maxwell, the president of the Court of Appeal, and Justice Mark Weinberg – as the hearing was live streamed on the internet.
Mr Walker, whose written submission argued there were 13 obstacles in the path of a conviction, said the most “obvious feature” of the “unsatisfactory” guilty verdict was the lack of witnesses to the alleged crimes.
Mr Walker argued it was impossible for Pell to have committed the assaults. Photo: AAP
As he went on the attack, he argued that it was physically impossible for Pell to have been in the St Patrick’s Cathedral sacristy at the time of the first attack.
“If he was at the western door, then the law of physics means this is literally and logically impossible for the offending to have occurred,” Mr Walker said.
The barrister, regarded as one of the best in his field, argued the dates of the two seperate attacks on the boys were uncertain, and added it would have been impossible for Pell to have moved his heavy formal robes to carry out the first attack, which occurred in late 1996.
Regarding that incident, he also said it could not have taken place in such a busy area: “No one else, apart from the victim or the perpetrator, was in that room for five or six minutes.”
Toward the end of Wednesday’s hearing, Ruth Shann, who also worked on Pell’s team during the trial, argued that it was wrong that a video depicting the movements of the cardinal, choirboys and staff at the cathedral was not allowed to be shown to the jury.
The animation was dubbed the “Pac Man” video by media covering the case.
“In the 21st century, an accused person should not be deprived of using 21st-century technology,” Ms Shann told the judges.
However, Justice Weinberg appeared unconvinced, telling the lawyer: “I don’t see the point of it”.
Pell, who is expected to take the case to the High Court if he fails to win his appeal, is being held in solitary confinement at Melbourne Assessment Prison in Melbourne’s CBD as he is deemed too high profile to mix safely with other inmates.
He is eligible to apply for parole after three years and eight months.
The New Daily understands a decision is likely to be handed down by the appeal judges in the next two weeks.
In the meantime the Vatican has launched its own investigation into the allegations, which will determine whether Pell is de-frocked.
His role as treasurer already expired in February.
Anyone affected by this article can contact Lifeline: 13 11 14
Investigative journalist and writer Lucie Morris-Marr has covered the entire Pell case for The New Daily. Her forthcoming book, Fallen – The inside story of the secret trial and conviction of Cardinal George Pell, will be published by Allen & Unwin in September
The appeal court judges listened intently as Bret Walker SC ransacked the English language to try to prove his point
Cardinal George Pell attended the appeal hearing at Victoria’s supreme court in Melbourne on Wednesday and took notes. Photograph: Reuters
Rule number two on these occasions is not to trust the look in their eyes. Judges are masters of disguise. Baleful can be applause. Smiles can be the kiss of death.
But the verdict at the end of the first day of George Pell’s appeal has to be that the bench is listening to the case being argued on his behalf by Bret Walker SC with a little more than respect.
Unusual features of the day’s proceedings include the chief justice Anne Ferguson giving trigger warnings to the crowd before argument got under way, plus the phone numbers of Lifeline and Beyond Blue.
Pell was in the box by this time. Life in prison suits no one, but the cardinal is looking fine. He was in clericals, not using his stick. He took notes. At a mention of him sitting on his throne in St Patrick’s Cathedral, he closed his eyes in a little gesture of self-deprecation.
Security had been tight for the crowd entering the court. We spread our arms and turned over our belt buckles. But did Pell really need the four prison guards in armoured vests sitting behind him all day? Were they there to protect him from his detractors or prevent him making a dash for the door?
We learned a lot. Pell’s accuser gave his evidence in private. The transcript will never be released. But after today we have more detailed accounts of the two incidents at St Patrick’s Cathedral that sent Pell to prison.
And we learned for the first time that at his trial Pell’s counsel, Robert Richter QC, took the tack of accusing the man directly of being a purposeful liar.
“I counted four or five occasions on which that line of attack was taken,” said Justice Chris Maxwell who read the transcript of Richter’s line of attack. “You went back and read the transcript of the committal, didn’t you, and you realised there were gaps in your story, didn’t you, and you invented new bits of the story to fill the gaps … ”
Walker spoke quietly. Calm equals confidence. His task was not to sweep the judges away with a stirring narrative of innocence. That’s for television. In real life – if that’s what the proceedings of a court of appeal can be called – the job of great advocates is to pick apart the prosecution’s case, to unravel their knitting.
Which brings us to rule number one: appeals are essentially impossible to follow in all their detail. The crowd doesn’t have the cartloads of documents parked around the court and lined up like mobile libraries behind the judges.
“Can I draw your attention to an incident in table L which I can amalgamate with table M,” Walker asked the judges. They grabbed folders, found tabs and opened wide. We saw not a page of those documents. We’re left to follow as best we can.
What’s clear is that Pell’s fate rests on Walker convincing the judges that the jury last year was wrong to dismiss doubts they musthave had about the case against him.
Unlike many of his defenders in the church who rushed to publication the moment his fate became public, Pell’s barrister is not arguing the jury’s verdict was impossible. Nearly but not quite.
The English language was ransacked by Walker to try to capture the difference: barely possible, extremely improbable, inherently improbable, so unlikely as to make it barely possible, not realistically possible etc.
The theologian in Pell may have enjoyed all this and the argument that took up a good part of the morning about the difference between “true” and “correct” and “credibility” and “reliability” and the due weight to be given to the word “must” in analysing the duties of the jury to entertain doubts about the prosecution’s case.
This might suggest the nitty gritty of Pell’s case was neglected. Not so. Walker discussed the West Door Alibi; the difference between robes worn by an archbishop when “presiding” rather than “officiating” at mass; the polishing of the doors to the archbishop’s sacristy; and the failure of Pell’s accuser to mention, 22 years down the track, the school holidays that fell between having a penis forced into his mouth in December and his genitals being grabbed as he processed down a corridor in February.
“May it please the court,” said Walker as he sat down after a hard day’s talking.
All over the legal district of Melbourne, barristers were neglecting their work to keep an eye on the proceedings being livestreamed on the supreme court’s website. The verdict of one or two of them: Pell’s case has legs.
But now the crown replies.
George Pell’s lawyer says timing of offence is ‘critical matter’ in appeal
Cardinal George Pell has appeared in a Melbourne court to appeal his conviction on charges related to child sexual abuse
Cardinal George Pell arrives at the supreme court on Wednesday. Photograph: Reuters
Cardinal George Pell’s lawyer, Bret Walker SC, has told three judges presiding over his client’s appeal that the timing of Pell’s offending was a “critical matter” in deciding whether his conviction should be overturned.
Walker is appealing Pell’s conviction on three grounds, the key one being that the jury came to an unreasonable verdict based on the evidence before them during the trial.
Jurors heard that the first offences, which involved Pell sexually assaulting two 13-year-old choir boys after Sunday solemn mass at St Patrick’s Cathedral in Melbourne, most likely occurred on either 15 or 22 December 1996. Pell orally raped one of the boys during this incident and indecently assaulted both of them.
The jurors heard Pell offended again about one month later when he grabbed the complainant’s genitals, once again after Sunday mass.
But the Crown’s written case to the appellate judges states that 3 November 1996 may have also been a possible date when the first offences occurred, as it had not been established during the trial that Pell was not present at mass on that date.
The introduction of 3 November as another possible date was “in itself disturbing … and should disturb this court”, Walker told Victorian supreme court chief justice Anne Ferguson, court of appeal president justice Chris Maxwell and justice Mark Weinberg.
It revealed the Crown’s own “doubts involving the theory that this supposed first event or incident indeed took place on the 15 or 22 of December”, Walker said. “And if it didn’t take place on one of those two dates then the Crown case fails.”
This was because the complainant said the second incident – Pell grabbing his genitals – occurred about one month later.
“There’s more than a month … well and truly … between 3 November and either 15 or 22 of December,” Walker said. It was in reviewing this timing that the judges should find a “lack of realistic probability of this offending taking place”, he said.
Pell, 77, was convicted in December on four charges of an indecent act on a child under the age of 16, and one charge of sexual penetration of a child under 16.
In his opening remarks on Wednesday morning, Walker also argued there was a “formidable list” of factors and events that needed to line up for the offending to be possible and the jury would have had to believe every one of those factors had occurred. This included believing that Pell was alone for about six minutes with the boys in the priests’ sacristy completely undisturbed, and possibly with the door open, after mass, he said.
It was “literally impossible” for the boys to have been abused, he said.
Maxwell put it to Walker that someone who was in New Zealand at the time they were alleged to have offended in Australia would be an example of an impossibility that they had offended. He questioned whether it was accurate for defence to argue Pell’s offending was impossible, given there was varying testimony from witnesses in the case in regards to choirboy access to the sacristy, Pell’s routine after mass, and other matters.
“The argument for impossibility… logically loses its force as uncertainty grows,” Maxwell said. “Your point is… and you’ve confirmed it several times… the evidence established such high improbability verging on impossibility there must have been a doubt. I’m just raising the notion… the greater uncertainty, the less forceful the argument for impossibility becomes. That must be true mustn’t it?.”
Walker responded: “No”.
During their closing arguments in the trial, prosecutors pointed to numerous pieces of evidence that demonstrated why the offending was possible. Jurors were also told it was not enough to just believe the complainant, or to think Pell was lying. They had to be convinced beyond reasonable doubt.
If Walker fails to convince the court that Pell’s conviction should be overturned on grounds of unreasonableness, he will fall back on two other grounds of appeal. One being that Pell was not arraigned in the presence of the jury panel; and the other being that Pell’s defence team should have been allowed to show a video animation of its argument during the closing address. The court accepting the appeal on these grounds would most likely result in a retrial rather than his conviction being overturned.
Family members and supporters of Pell and the complainant sat in the front row of the court, which was at capacity. An overflow room was opened with a video link to the courtroom to accommodate those who could not get a seat. Supporters of the complainant and the second choirboy, who died in 2014, were also in the court.
Pell attended in person, brought from the Melbourne Assessment Prison in West Melbourne where he has been held since February when he was sentenced to six years in prison. He dressed in all black and wore his clerical collar, limping slightly as he walked into the court. He occasionally took notes on a yellow notepad and watched Walker and the judges intently. Police officers sat behind him.
The prosecution’s response to the appeal is being led by senior crown prosecutor Christopher Boyce and assisted by prosecutors Mark Gibson, who led the trial, and prosecutor Angela Ellis. Walker is being assisted by defence barrister Ruth Shann.
When prosecutors put their case to the court, they will argue, according to their written submission, that the complainant’s evidence was “not only plausible, it was credible, clear and entirely believable as is reflected in the jury’s verdict”.
“The ability of the complainant to so accurately describe the layout and wood panelling of the priests’ sacristy (including the alcove) – an area in which he could not recall having ever seen either before or after this event – was a significant aspect of the Crown case,” the submission states. “It bespoke both truthfulness and reliability. Any inconsistencies in the complainant’s evidence were of little moment and could not have been said to have impacted on his credibility in any material way.”
Walker told the court doubt should have also been raised among jurors from evidence that Pell’s second victim denied he had been abused before he died. When the court adjourned for lunch, lawyer Lisa Flynn, representing the father of the dead victim, said that argument should hold “little persuasion”.
“Having represented thousands of sex abuse victims, I can tell you that it is not uncommon for victims to wait decades before opening up about what happened to them, a lot even take it to their grave,” she said.
“It is not unusual to deny abuse, particularly to parents. Many survivors find it impossible to tell their parents, their beloved mum or dad.”
Walker was questioned throughout the day by the judges. Maxwell put it to him that “you wouldn’t expect perfect recall” from a child sexual abuse victim. He also told Walker: “We have to be satisfied don’t we that the jury must have had a doubt, not might have.”
Maxwell said on his reading of the trial evidence, a significant component of the defence’s case was that the complainant was a liar. The jurors would have considered the plausibility of this argument in making their verdict, Maxwell said.
Walker responded that just because the jurors rejected this argument, it didn’t mean they shouldn’t still carry reasonable doubt.
Before Walker finished on Thursday, he was asked by the judges to address the issue of the robes. In the trial and in the appeal, Pell’s lawyers argued that it was physically impossible for Pell to manoeuvre his robes to the side in order to expose his penis as the complainant said.
Ferguson put it to Walker that the chasuble, which is the outer layer, was like a cape and could be moved to the side. Walker said that would still leave the alb underneath, which could not be manoeuvred to the side.
Prosecutors will deliver their response on Thursday and the appeal is expected to close that afternoon. While the judges may deliver their decision at the close of the appeal, it is more likely they will do so at a later date.
The hearing continues.
The emphatic statement in Pell’s decision to wear his priestly uniform
The Canberra Times
June 5 2019 – 12:57PM
If clothes maketh the man, or at least provide an insight into his state of mind, then George Pell’s decision to wear his clerical collar on the first day of his appeal seemed an emphatic statement.
He was last seen in civvies, sans collar, in a fawn jacket and open-necked shirt, as he was sentenced to six years in prison in March, an event that dramatically impugned around the world the reputation of the already sullied Catholic Church.
George Pell arriving at the Supreme Court on Wednesday morning. Picture: AAP
His donning this time of his clerical uniform of a priest’s collar with black shirt and black jacket was a declaration in itself, a protestation of his innocence and his intention to reinstate his reputation, so mired in scandal after his conviction of sexually abusing two choirboys in 1996.
It also shows what’s at stake – if the appeal fails, he faces a potential Vatican trial and defrocking after more than half a century as a priest, during which he has risen to the posts of bishop of Ballarat, Archbishop of Melbourne and Sydney, and latterly a cardinal, one the global church’s most senior figures.
After more than three months in custody at Melbourne Assessment Prison, Pell looked no worse for wear – even healthier than his apparent frailty during his sentencing.
Pell was released on bail to have knee surgery after being found guilty in December, and he used a cane to support himself when he was sentenced in March. But on Wednesday, he seemed to move more easily as he entered the courtroom, and sat calmly and attentively as proceedings began.
Back in court on Wednesday morning he was represented by his new lawyer, the mild mannered Sydney silk Bret Walker, in contrast to the pugnacious Melbourne QC Robert Richter, who led his defence.
As Walker outlined the grounds for his appeal, teasing out what he described as inconsistencies in the prosecution case, Pell sat with his hands crossed, a yellow notepad and pen in front of him.
He moved his hands almost constantly in the first half hour, crossing and uncrossing them, occasionally taking notes, stroking his chin and his lip, taking his glasses off and putting them back on.
His expression gave nothing away, but these gestures, which later settled somewhat, perhaps signalled a nervousness underlying the impassive facade.
Several times, he lowered his eyes ever so fleetingly while Walker described as “bizarrely odd”, “atrocious” and “disgraceful” the acts for which Pell had been convicted.
Walker was firm but exceedingly polite to the justices, and employed the occasional clever turn of phrase. At one point he said the complainant’s description of Pell having been at the western door of the cathedral, far away from the sacristy, was “as good as being across the Tasman”.
The public gallery was full, but the appeal had none of the febrile theatre that accompanied Pell’s sentencing. Some who attended had come from interstate to support Pell. Jesuit priest Frank Brennan, who previously expressed his “devastation” at Pell’s conviction, appeared to be one of few representatives of the church to attend.
Others such as Chrissie Foster, whose two daughters’ lives were destroyed by their rape by a Catholic priest, and Peter Fox, the Newcastle detective whose career was destroyed by blowing the whistle on such crimes, were there to represent victims of clergy abuse.
If you or anyone you know needs support, you can contact the National Sexual Assault, Domestic and Family Violence Counselling Service on 1800RESPECT (1800 737 732), Lifeline 131 114, or beyondblue 1300 224 636.
Pell’s lawyers list 13 reasons why jury verdict was ‘unreasonable’
The Canberra Times
June 5 2019 – 9:33AM
George Pell’s lawyers have outlined 13 reasons why a jury should have had a reasonable doubt before they found the 77-year-old guilty of sexually assaulting two choirboys at St Patrick’s Cathedral in the 1990s.
The Supreme Court released the written submissions from Pell’s lawyers and prosecutors ahead of his appeal against convictions for child sex crimes.
Pell is three months into a six-year prison term after he was found guilty of five charges. His lawyers are appealing against those convictions on the basis the County Court jury’s verdicts were “unreasonable”.
Cardinal George Pell arrives at the Supreme Court of Victoria in Melbourne to appeal his conviction for sexually abusing two boys in the 1990s listed for the Court of Appeal. Picture: AAP
Among the defence’s written points were submissions that Pell would never have been left alone by church officials inside the East Melbourne cathedral, that it was “not possible” for two boys to be sexually assaulted in the sacristy undetected, that it was “not possible” for the boys to have re-entered the cathedral from outside without being seen, and that Pell’s robes made the allegations “physically impossible”.
The cardinal’s lawyers said the allegations made by the surviving victim to the trial were “implausible”.
Pell’s lawyers said the Court of Appeal was obliged to put aside the jury’s verdict and acquit the cardinal.
“In doing so, the court rectifies a miscarriage of justice where there is a significant possibility that an innocent man was convicted for crimes he did not commit,” the defence submission says.
“It also restores community confidence in the robustness and integrity of our justice system and shows that the system, overall, is capable of dealing with high-profile and highly-charged matters by rationally, intellectually and objectively finding the facts and applying the law.
“Each of the verdicts should be quashed and substituted by verdicts of acquittal.”
But prosecutors argued in submissions that the jury accepted the evidence the victim gave to trial and rejected Pell’s denials.
“The jury were entitled to accept the complainant as a reliable and credible witness,” prosecutors said in their written submission.
“He was skilfully cross-examined for two days by a very experienced member of Senior Counsel. During that time, the jury had the singular opportunity to observe the complainant as a witness, and to assess the evidence he gave, as it was tested by a detailed process of cross-examination. The complainant’s allegations were not improbable when all of the evidence is carefully considered.”
Prosecutors argued that when looking “at the whole of the evidence, the integrity of the jury’s verdicts is unimpeachable. This ground should be refused.”
Pell’s lawyers have also challenged a ruling County Court Chief Judge Peter Kidd made during the trial, and the fact the cardinal wasn’t arraigned in front of the jury.
If the Court of Appeal finds in Pell’s favour on the second and third points, it is likely to send the case back to the County Court for retrial.
But prosecutors urged the appeals judges to reject the second and third points, and argued that Judge Kidd was correct to rule out a video depiction that Pell’s lawyers wanted to play to the jury, because it was new and had not been put to any of the witnesses.
They said the fact the jurors could see Pell being arraigned via video link – albeit they weren’t in the same room as him – did not constitute a breach of law.